Is it Time for ICC to Open Nigeria Investigation?

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Jan 12, 2015  - Nigeria’s President Goodluck Jonathan is again under scrutiny for his handling of the Boko Haram insurgency after the group’s attack in Baga last week which Amnesty International says killed up to 2,000 people but which the Nigerian government estimates killed some 150.

The Baga assault was followed by an attack in Kano this weekend that killed 23 and reportedly involved strapping a bomb to a 10-year-old girl.

The latest atrocities will lead to more calls for the ICC to open an investigation into the situation in Nigeria, citing the Nigerian government’s apparent unwillingness or inability to carry out genuine investigations or prosecutions into Boko Haram. The Islamist group has killed an estimated 9,000 civilians in the past five years, with attacks becoming more frequent and deadly, in addition to attacks on schools and the kidnapping of hundreds of schoolgirls.

ICC Prosecutor Fatou Bensouda reported in December that her office’s preliminary examination of the situation in Nigeria is currently at Phase 3, the stage where the prosecutor is determining whether the Nigerian government’s proceedings “are substantially the same as those that would likely arise from an investigation” by her office and whether “those most responsible for the most serious crimes are being brought to justice.”

“Information gaps remain with respect to national proceedings, in particular regarding the high discrepancy between the reported number of arrests of persons associated with Boko Haram and information on relevant legal proceedings,” Bensouda’s December report said. “The Office will request further information on and continue to analyze the relevance and genuineness of national proceedings by the competent national authorities.”

Critics of Jonathan say he is deliberately turning a blind-eye to Boko Haram’s assaults in the northern part of the country ahead of the February 1 presidential election. The claim is that by disenfranchising millions of voters in the pre-dominantly Muslim northern part of the country, he is assuring himself of victory over his presidential rival General Muhammadu Buhari.

Nigeria ratified the Rome Statute in Sept. 2001. The Court has determined that the situation in the north constitutes a non-international armed conflict and that there is a reasonable basis to believe that Boko Haram has committed crimes against humanity including murder and persecution and that the attacks on educational institutions and the kidnapping of schoolgirls could constitute crimes under the Court’s jurisdiction.

There are credible fears that next month’s election could lead to further violence. In addition, the activities of Boko Haram are now spilling over into neighboring countries, including Chad, where some 7,300 Nigerians have fled in recent days. Chad has troops serving with a Multinational Task Force (MNJTF), consisting of soldiers from Nigeria, Niger and Cameroon, in addition to Chad. The MJNTF is supposed to provide a bulwark against Boko Haram but that has not materialised and soldiers abandoned their base in Baja during last week’s deadly assault.

ICC Prosecutor Bensouda is not likely to rush her decision but much will depend on the outcome of the Feb. 14 election in Africa’s most populous nation. Jonathan is expected to win handily but it is his commitment to investigating and prosecuting Boko Haram leaders following his expected re-election that will be closely monitored by the ICC prosecutor ahead of her next report.

- Denis Fitzgerald
On Twitter @denisfitz

Palestine Accession to ICC Effective April 1

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Jan 7, 2015, Palestine will become the 123rd member of the International Criminal Court on April 1st, according to UN Secretary-General Ban Ki-moon.

Ban, in his capacity as the UN depository of treaties, said in a statement on Tuesday that the State of Palestine had acceded to the Rome Statute, which governs the Court, and this would become effective in April. Palestine handed over the required documentation on Jan 1 and the court’s jurisdiction becomes effective 60 days the first day of the following month.

In a submission on Jan 2, Palestine granted the Court jurisdiction over crimes committed in their territory since June 2014. That would include the war in Gaza this past summer.

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Kenyatta Becomes First ICC Indictee to Address the UN Security Council

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Sept. 24, 2013 – Kenya’s President Uhuru Kenyatta became the first International Criminal Court indictee to address the Security Council when on Wednesday he spoke at US President Barack Obama’s summit meeting on foreign terrorist fighters.

In one sense, his presence was fitting. Kenya has suffered more than most countries as a result of foreign terrorist fighters. Kenyatta cancelled his visit to last year’s high-level segment of the General Assembly because of the Westgate Mall terrorist attack which killed 67 people. The anniversary of the attack was on Sunday.

Al-Shabab militants claimed responsibility for the assault on the mall saying it was retribution for Kenya’s troop presence in Somalia, where the group has its home base.

But Kenyatta’s presence in the chamber where decisions on upholding international peace and security are made is also troubling. He was indicted on five counts of crimes against humanity over the post-election violence in 2007-08 that killed more than 1,100 people.

In November last year, the Council rejected a resolution that would have delayed the start of his trial when a draft text pressed by the African Union failed to garner enough votes. Seven Security Council members voted for the draft resolution while the eight others abstained.

After the November 2013 Security Council vote, US Ambassador Samantha Power, explaining her abstention, said: “The families of the victims of the 2008 post-election violence in Kenya have already waited more than five years for a judicial weighing of the evidence to commence. We believe that justice for the victims of that violence is critical to the country’s long-term peace and security. It is incumbent on us all to support accountability for those responsible for crimes against humanity.”

As it stands, the trial is in danger of collapsing. On Sept. 5, the Office of the Prosecutor of the ICC filed a notice to the court stating that it will “not be in a position to proceed” with the trial against Kenyatta which was scheduled to start on Oct. 7.

The prosecution said an adjournment is required because it does not have the evidence available to prove Kenyatta’s alleged criminal conduct beyond a reasonable doubt but added that it would be “inappropriate” to withdraw the charges completely as the Government of Kenya has not complied with the Court’s requests.

On Friday Sept. 19, he was ordered to appear before the tribunal on Oct. 8 where judges want to question him over claims that his government has withheld documents.

Kenyatta repeatedly argues that he needs to remain in Kenya to fight al-Shabab and attend to state business.

He denies organizing the ethnic massacres after the 2007 election.

- Denis Fitzgerald
On Twitter @denisfitz

Image: ICC website.

New Books on the ICC, Agenda Setting, and Irish Peacekeepers

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Aug. 18, 2014 – Three new books look at the power politics at play in the UN with respect to the International Criminal Court, the global advocacy movement, and UN peacekeeping.

In David Bosco’s rigorous account of the first ten years of the ICC, Rough Justice, the evolution of the Court is examined alongside the evolving role played by major powers, primarily the United States, but also including China, India and Russia – who were, and who mostly still are, distrustful of the Court, along with other powers who are mostly supporters of the Court – Brazil, Britain, France, Germany and South Africa.

Bosco notes that the US actively petitioned other countries to not ratify the Rome Statute but later abstained in a 2005 UN Security Council vote referring the situation in Sudan to the ICC (He also writes that later all permanent members of the Council were against the ICC indicting Sudanese Pres. Bashir). In 2011, the US voted for Resolution 1970 referring the situation in Libya to the Court, but the Council have not, as Bosco reminds us, included an enforcement mechanism or allocated funds for the investigations in both these cases.

While the Council has referred situations to the ICC, when the authors of the Goldstone Report on Israel’s invasion of Gaza in 2008 concluded that the violations “fall within the subject-matter jurisdictions of the International Criminal Court,” Bosco writes that then US envoy to the UN Susan Rice “privately emphasized to Israeli President Shimon Peres the US ‘commitment not to allow the issue to move from the Security Council to the International Criminal Court.’”

He adds that there is mounting evidence that the Court prefers to avoid situations involving big powers, citing Afghanistan as another example.

Among his conclusions on the first ten years of the ICC, Bosco writes that “the court has, for the most part, become a toolkit of major powers responding to instability and violence in weaker states” but so far there is little evidence that is has altered “political power realities.”

However, “the failure of the US-led marginalization campaign and other efforts to delay or defer court processes on political grounds signal that even major powers are limited in their ability to challenge frontally justice processes that have begun… however, that inability may have opened space for less obvious mechanisms for control.”

Charil Carpenter’s Lost Causes is concerned with what issues get promoted by “global advocacy elites.” As just one instance, she notes that “internal wars are an important concern for conflict prevention analysts but gangs and urban violence are on the margins of the global security agenda” (yet most armed violence occurs in countries not in armed conflict).

Carpenter’s book is sub-titled ‘Agenda Vetting in Global Issue Networks and the Shaping of Human Security’ and her theory, which she expounds on with several examples, is that advocacy elites choose issues not based “on their merits, or mandate, or the wider political context, but partly on calculations about the structure of their institutional relationships – to other actors, to other issues.”

The material is at times dense but the book is well organized and the topics the author chooses to illuminate her theory are well chosen, and it provides good insight into how the UN, particularly the Security Council and the Office for the Coordination for Humanitarian Affairs, adopt positions. Carpenter writes that one advocate campaigning for compensation to families of civilians killed in conflict was advised not to contact the human rights officers at UN missions, who are mostly delegated to the UN’s third, or human rights, committee at the General Assembly, but instead to contact the person responsible for protection of civilians as these individuals are engaged with the Security Council which holds regular thematic debates on protection of civilians.

Michael Kennedy and Art Magennis’s Ireland, the United Nations and the Congo is a thoroughly researched account of the UN’s early peacekeeping forays using the experience of Ireland’s 6,200 troops contribution to the 1960 peacekeeping deployment to the Congo, ONUC.

Some of the insights are familiar to those who follow UN peacekeeping. That the government deploying the troops was more concerned about elevating its position and rank in the UN system than the welfare of the troops or the potential for success of the mission.

The book also examines the role of then secretary-general Dag Hammarskjold, the iconic Swede who later lost his life in a plane crash over Zambia which is still being investigated. “He had maintained strict overall command of ONUC and emerges from UN records on Congo and from his personal papers not as the neutral international servant with a ‘halo’ which is visible for a considerable distance,’ but as a calculating pro-Western and at times Machiavellian operator.”

The book is meticulously researched and while it examines events fifty years ago, there are many parallels to current debates on peacekeeping such as peace-enforcement, cover-ups of atrocities committed by blue helmets and the political calculations of troop contributing countries.

- Denis Fitzgerald
On Twitter @denisfitz

China, Russia Double Veto UNSC Draft on Syria ICC Referral

Russian Ambassador Vitaly Churkin addresses the Council, May 22, 2014. (UN Photo/Eskinder Debebe)

Russian Ambassador Vitaly Churkin addresses the Council, May 22, 2014. (UN Photo/Eskinder Debebe)

May 22, 2014 – The draft resolution that would have referred the situation in Syria to the International Criminal Court was defeated after vetoes from China and Russia.

It was the fourth time Beijing and Moscow cast vetoes on a resolution concerning Syria, having previously voted against resolutions in October 2011, February 2012 and July 2012.

The French-drafted text had over 60 co-sponsors including permanent Council members Britain and the US as well as non-permanent members Australia, Chile, Jordan, Lithuania, Luxembourg and South Korea.

The Council’s African members – Chad, Nigeria and Rwanda – all voted for the text but did not co-sponsor the resolution. Nor did Argentina, who also voted for the resolution, but declined to co-sponsor because of what the country’s ambassador called the “selectivity” of the draft.

- Denis Fitzgerald
On Twitter @denisfitz

In Key Shift, UNSC Draft on Syria ICC Referral Expresses Commitment to Follow Up

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May 21, 2014 – In the two situations that the Security Council has referred to the International Criminal Court – Darfur and Libya – not a single person wanted by the Court has ended up in The Hague.

Current prosecutor Fatima Bensouda expressed her frustration at the Council’s lack of support for her office when she presented her 18th report on Darfur in December last year: “Inaction and paralysis within the Council has not only prolonged the suffering of Darfur’s victims, but has bolstered Mr Al-Bashir’s resolve to ignore this Council.”

The Council appears to have taken note and unlike resolutions 1593 on Darfur (2005) and 1970 on Libya (2011), the draft text that would refer the situation in Syria to the ICC includes a support clause with operative paragraph 5 stating that the Council “expresses its commitment to an effective follow up of the present resolution.”

The follow up that the prosecutor’s office wants most is concrete action to enforce its arrest warrants. Sudan’s Bashir has travelled to more than a dozen countries since his warrant for arrest was issued including most recently to the Democratic Republic of Congo which is a state party to the Rome Statute.

While the draft Syria resolution looks set to fail by way of a Russian veto, the shift in language will be taken note of in The Hague.

- Denis Fitzgerald
On Twitter @denisfitz

Uruguay Not Co-Sponsoring UNSC Resolution on Syria ICC Referral

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May 20, 2014 –  Uruguay’s mission to the UN on Tuesday said it will not co-sponsor the draft Security Council resolution referring the situation in Syria to the International Criminal Court.

The country, a strong supporter of the ICC and the first Latin American country to implement the Rome Statute into law, was among the states listed in a letter circulated on Monday by the Swiss Mission to the UN calling for other countries to co-sponsor the draft text which is expected to be voted on later this week.

“While Uruguay strongly supports such a referral, it will be unable to co-sponsor the resolution and therefore prefers not to associate itself with the call for co-sponsorship,” its mission said in a statement.

No other details were provided and calls to its mission for more information have not yet been returned.

Uruguay was one of 18 countries worldwide that lost aid for refusing to sign a Bilateral Immunity Agreement with the United States because they said it would breach their obligations under international law.

The draft resolution referring Syria to the ICC includes a clause that exempts nationals from countries outside of Syria that are not party to the Rome Statute.

- Denis Fitzgerald
On Twitter @denisfitz

UNSC Draft Resolution on Syria ICC Referral Exempts Saudis, Iranians and Lebanese

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ICC Prosecutor Fatou Bensouda Briefing the Security Council on Libya, May 13, 2014 (UN Photo)

May 13, 2014 – The draft Security Council resolution circulated by France that calls for referring the situation in Syria to the International Criminal Court would exempt the bulk of foreign forces on both sides from investigation and prosecution.

An operative paragraph in the draft Syria text states that the resolution “decides that nationals, current or former officials, or personnel from a state outside the Syrian Arab Republic which is not a party to the Rome Statute of the ICC shall be subject to the exclusive jurisdiction of that state for all alleged acts or omissions arising out of or related to operations in the Syrian Arab Republic, established or authorized by the Council unless such jurisdiction has been expressly waived by the state.”

The paragraph uses the exact wording as in the two previous resolutions where the Council referred situations to the ICC – Resolution 1593 on Darfur (2005) and Resolution 1970 on Libya (2011).

In both cases, and also with the current draft Syria text, it is understood that the exemption paragraph is included at the insistence of the US.

But the paragraph exempts all non-Syrians from countries that are not party to the Rome Statute. That includes Iran, Iraq, Lebanon, Saudi Arabia and Qatar as well as the US, China and Russia.

When former US ambassador to the UN, Susan Rice, was asked about the exemption clause in 2011 as it related to non-Libyans fighting for Gaddafi, she said the ICC would focus on the “big fish” and not the “foot soldiers.”

ICC Prosecutor Fatou Bensouda, who refused to take questions on Syria during a press conference at UN headquarters on Tuesday, could assert her independence if – and it seems unlikely at this stage – the French-drafted resolution is adopted, she accepts the referral but rejects the limitations imposed on her investigation.

- Denis Fitzgerald
On Twitter @denisfitz

Samantha Power Says No to Any Palestinian Push to Join UN Agencies

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April 2, 2014 – Samantha Power on Wednesday told members of the US Congress that she will firmly oppose any Palestinian bid to join UN and other international agencies and treaties.

The US envoy was speaking before the House Subcommittee that authorizes funds for UN activities on the same day that Palestine’s UN envoy, Riyad Mansour, said his country may seek to join more multilateral organizations including possibly acceding to the International Criminal Court.

“We are fighting every day — on numerous fronts — to end the bias against Israel that has long pervaded the UN system,” Power said in her testimony before the House Subcommittee on Appropriations for State, Foreign Operations and Related Programs. “This solemn commitment also extends to our firm opposition to any and all unilateral actions in the international arena, including on Palestinian statehood, that circumvent or prejudge the very outcomes that can only come about through a negotiated settlement.”

On Monday, Palestinian President Mahmoud Abbas announced he was submitting applications to join 15 international organizations and treaties. He said the decision to do so was because Israel had not released the final batch of prisoners it agreed to release in a deal made nine months ago.

“When they violated that agreement, we were free to do whatever we feel that we need to do and what we did is legal,” Mansour said at UN headquarters in New York on Tuesday.

Palestine joined UNESCO in October 2011 in a move that was supported 107 of the organization’s member states including Security Council permanent members China, France and Russia. The United Kingdom abstained.

The US Congress immediately froze funds to the organization that supports literacy and free expression. As a result of not paying dues to UNESCO for two consecutive years, the US lost its voting rights in November last year.

- Denis Fitzgerald
On Twitter @denisfitz

photo: UN Photo/Mark Garten

Bashir Not The Only President Facing ICC Charges Planning UNGA Visit

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Sept. 18, 2013  - Kenya’s President Uhuru Kenyatta, who is facing charges of crimes against humanity at the International Criminal Court, is expected in New York next week to speak at the United Nations General Assembly.

The latest UN list of speakers for the annual General Debate notes that the head of state will speak on behalf of Kenya’s delegation next Wednesday.

Kenyatta was indicted by the Hague court in March 2011 charged with crimes including murder, rape and persecution that occurred in 2007-08 following a disputed election. He denies the charges.

Kenyatta was elected as Kenya’s president in March. President Obama did not visit the country, his ancestral homeland, during his June visit to Africa, traveling instead to Senegal, South Africa and Tanzania. Obama’s decision not to visit was reportedly due to Kenyatta’s election.

Unlike Sudan’s President Omar Al Bashir who has refused to appear at the court and is subject to an arrest warrant, Kenyatta has travelled to the Hague to defend himself.

Calls to Kenya’s UN mission to confirm his attendance were not answered.

- Denis Fitzgerald

photo: creative commons